Pflueger case to test protection of blogs

An isle Internet writer claims a journalist's standard for secrecy

A LAWYER trying to get an Internet writer to testify and turn over notes for a court case says Web bloggers should not have the same rights as mainstream reporters.

Attorney William McCorriston, in a lawsuit brought by landowner James Pflueger over the failure of the Ka Loko Dam, claims that Malia Zimmerman of Hawaiireporter.com is a blogger who is not entitled to withhold her sources of information.

But Zimmerman, an editor and reporter for the Web site, says she is a legitimate journalist, not just some hack who offers half-baked commentary on the news of the day.

"Any journalist who gives their word that they'll protect somebody's information or keep them in confidence, you have to abide by that," Zimmerman said. "It's not the medium you publish in, it's what you do with that information."

Circuit Judge Gary Chang has ordered Zimmerman to submit to questioning under oath by McCorriston, likely in June. She can refuse to answer questions, but she must explain her reasons for doing so, and the judge would later rule on whether she is justified.

Hawaii does not have a journalist shield law, like those enacted in 31 states to protect reporters' rights to keep their sources confidential.

That means there will be two issues for Chang to decide: whether Zimmerman is a real journalist, and whether reporters have a qualified privilege to refuse providing confidential information to lawyers in a civil case.

"It seems to me that if a blogger is a journalist, everyone can produce a blog and never be subject to a subpoena," McCorriston said. "Are all bloggers journalists? It's a question that's never been answered anywhere."

Hawaiireporter.com covers politics and business news, frequently from a conservative or libertarian perspective. It began publication in 2002, and Zimmerman said she does not consider it to be a blog, which generally is a Web site that posts a mix of fact and opinion.

Zimmerman is being asked to testify about her investigative reporting into the March 14, 2006, failure of Ka Loko Dam on Kauai, which unleashed a 20-foot-high wave of water that killed seven people.

Most of the land surrounding the dam is owned by Pflueger, who is suing the state and private companies over oversight of the dam. Pflueger also faces a criminal investigation and lawsuits over his responsibility for the accident.

As a consultant for ABC's news magazine "20/20," Zimmerman interviewed island residents who said Pflueger had filled in the emergency spillway with dirt. Pflueger has denied filling in the spillway, which some believe might have caused the dam to fail when heavy rain filled up the reservoir.

Her sharing of information from her sources as a consultant with ABC nullified any protection she would have as a journalist, McCorriston said.

"She's far more than a blogger. She's got an institutional publication. It just happens to come out on a computer," said Zimmerman's attorney, Jeff Portnoy, who will base his case on First Amendment rights guaranteeing freedom of the press. "She's not just sitting at home and every couple of days writing a note to people."

Zimmerman said her work for ABC was part of her legitimate journalistic role.

If she is compelled to reveal her sources, e-mails, phone records, notes and photographs, Zimmerman would be turned into a witness in the case rather than an objective observer, Portnoy said. Neither side has said what specific information Pflueger hopes to get from Zimmerman.

The courts will have to weigh how many press freedoms extend to the realm of the Internet, said University of Hawaii constitutional law professor Jon Van Dyke.

"How does she differentiate herself from the zillions of other people who use the Internet, posting things on MySpace or whatever?" he asked. "If we're going to give special protection to the press, we should have some idea of who's in it and who's not."

This case could drag on for years if Chang's decisions are appealed to the Hawaii Supreme Court, Portnoy said. Two lawsuits for wrongful death and property damage are scheduled to be heard in 2009.